Managing experts in litigation

Summary

A series of decisions in which experts or their instructing solicitors have come under fire, together with similar judicial commentary outside the courtroom, prompts a reminder of what parties' obligations are, and where things can go wrong, when instructing an expert in English Court proceedings. Parties, experts and instructing solicitors need to be aware of, and comply with, obligations set out in Part 35 of the in the Civil Procedure Rules (CPR), its Practice Direction, and the 2014 Guidance for the instruction of experts in civil claims (judiciary.uk).

Criticism of Experts

Close scrutiny of expert witnesses by the English Courts is nothing new, but we have seen a series of decisions in 2021 in which expert witnesses have been heavily criticised. Doubts about the validity (or in extreme cases the veracity) of an expert's evidence can have fundamental implications for a party's position on liability and costs. Criticism of an expert is often accompanied by criticism of the instructing solicitors.

Before we set out tips on how to avoid the pitfalls, here are some examples of how it can go wrong:

• In Dana UK Axle Ltd v Freudenberg FST GmbH"serious and unexplained" breaches of a court order and CPR 35 by the defendant's experts led to the exclusion of the defendant's technical expert evidence at trial. It emerged that the experts had liaised with individuals within the defendant's business numerous times, including making site visits, without any involvement, oversight or control by the solicitors. The solicitors were criticised for failing not only to "maintain appropriate levels of supervision and control" but also for having apparently failed to have "explained their duties to them or to have ensured basic levels of compliance with the requirements of the CPR".

• In Beattie Passive Norse v Canham Consulting Ltd the claimant's expert structural engineer was criticised by the judge for "constantly" embellishing and exaggerating his evidence, and his evidence was given "considerably lesser weight" than that of the defendant's expert. The costs judge later held that the expert's failings did not in themselves justify an award of indemnity costs (in Beattie Passive Norse v Canham Consulting); although experts' failings might justify costs sanctions in some cases, they did not quite reach that extent here. However, the judge noted that "...[t]here is a worrying trend generally which seems to be developing in terms of failures by experts generally in litigation complying with their duties." 

• In Rogerson v Eco Top Heat & Power Ltd  a change of expert led to allegations of "expert shopping". Parties should be aware that if the seek permission to change expert, the court can order disclosure of documents generated by its original expert as a condition of the grant of permission.

The principles

In his keynote address to the Expert Witness Institute's annual conference in May 2021, Lord Hodge summarised what the court expects of a competent expert witness, including that the expert is independent and impartial and aware of obligations to the court, that evidence is genuinely "expert", that experts critically examine their own work, and that evidence is presented with clarity of thought and expression.

It is vital for expert witnesses in litigation, as well as parties to litigation and their instructing solicitors, to be aware of, and to comply with their obligations in the CPR, in the CJC's Guidance for the Instruction of Experts in Civil Claims, and in the Pre-Action Protocols when engaging experts at an early stage. In short, experts, and instructing solicitors, need to ensure that an expert demonstrates three key attributes:

• Independence: an experts' role is to help the court on matters within their expertise, and that duty overrides any obligation to the client or the instructing solicitors (CPR Part 35.3). As the CJC Guidance makes clear, and as demonstrated by the issues in the Beattie Norse case, experts should "...not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates or mediators".

• Expertise: it is vital at the outset for the parties and their solicitors to examine what expert evidence might actually assist the court. Where expert evidence is necessary, does the appointed expert have the right expertise to assist the court? Having made those decisions, it is important that the experts "confine their opinions to matters which are material to the disputes and provide opinions only in relation to matters which lie within their expertise" (para. 11 of the CJC Guidance). Instructing solicitors need to test, at the beginning and on an ongoing basis, the expert's position. Are all opinions supported? Has anything changed on receipt of additional documents or evidence? Are all matters on which the expert is giving evidence genuinely within their expertise and, if not, is that made clear in any report?

• Awareness of, and compliance with, their obligations: The instructing solicitors need to outline the duties at the outset, and both to remind and monitor experts throughout the process. As demonstrated by the Dana case, the lawyers should act as gatekeepers, supervising all interactions between client and experts and keeping careful notes, and keeping track of all documents and information provided in both directions. The Court needs to understand what information and instructions had been provided to each side's experts so that it was clear whether they were operating on the basis of the same information and, therefore, on a level playing field.This can be particularly difficult where an expert is simultaneously being engaged by the client to assist, for example, with remedial steps in whatever problem has caused the litigation. A clear distinction needs to be drawn between the provision of information for work as an expert in litigation and for any other work.

• A possible fourth key point, highlighted by Lord Hodge in his May 2021 speech, is the need for clarity. Parties and instructing solicitors should not be afraid to push experts to explain their view in a clear and comprehensible way throughout the process; as Lord Hodges said "[b]oth clarity of thought and clarity of expression or presentation of the evidence will assist the judge greatly".

Conclusion

Although we have summarised the key issues and the guiding principles when obtaining expert evidence here, there is no substitute for both instructing solicitors and the engaged experts reminding themselves of the obligations as set out in the CPR and elsewhere.

Early, and constant, testing of an experts' views should be baked in to the process of obtaining expert evidence. Lord Hodge's expectation that experts should demonstrate "[c]ontinual critical examination of their own work or opinion" is related to a need both for impartiality and genuine expertise. An expert who is too rigid in their views, and who cannot show that they are prepared to alter their stance in the face of evidence to the contrary, is neither showing impartiality nor giving the court confidence in their expertise.